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Former Congressman Rick Hill announces support of Water Compact

March 5, 2015 by Rick Hill

I have come to the conclusion that it is time for the Legislature to approve the Water Compact negotiated by the State of Montana and CSKT.

There are certain realities that the Compact requires us to recognize. These realities have been difficult for some to accept, but they are realities none the less. The first is that the Treaty of Hellgate grants the CSKT certain rights including the right to claims for water on and off the Reservation. Secondly, these rights were established well before Montana gained Statehood.
The purpose of the Compact is to quantify the Tribe’s water claims and create a mechanism to resolve conflicts over future water needs.

Some say they object to the Compact because it violates property rights’ principles. Fact is, CSKT have property rights, too. If you support property rights then you are obligated to defend all property rights, including the Tribe’s.

Failure to approve the Compact will result in litigation of the Tribe’s claims. It will also require litigation of every other water claim that conflicts with the Tribe’s claims. Opponents seem to believe that litigation will lead to a “better result.” A “better result” evidently means less water for the Tribe. I suppose that is possible. But it’s not probable. Courts have broadly interpreted Treaty language to the benefit of tribe’s and it is reasonable to expect they will eventually do the same here. But even if they interpret the Treaty interests more narrowly to what extent will non-tribal private interests benefit?

So far I see, no one has identified any quantifiable benefit to litigation.

It is important to also realize that the cost of this litigation will fall upon water users and not the State of Montana. Thousands of individual claims will have to be separately quantified through costly litigation. Thousands, perhaps tens of thousands of water users will be brought into the fight. It will cost tens of millions of dollars to fund the lawyers and experts. And it will take years, perhaps decades to settle those claims.

And to what benefit? It seems to me a basic cost benefit analysis would conclude that the risk and cost of a poorer outcome and the ongoing uncertainty are less beneficial than the settlement.
So far as I can see, existing water users are reasonably protected in the Compact. The level of detail in the abstracts while complicating are intending to provide a high degree of visibility and predictability. The Compact gives everyone security in their claims and permits the Water Court to conclude much of its work.

For these reasons I think the principled and practical position is to support the Compact.